HomeMy WebLinkAboutSYSTEMS & SOFTWARE INC. - 2008
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END USER LICENSE AGREEMENT
This End User License Agreement ("Agreement") is made and entered into as(')/J}fIl'}, .3 ,2008 ("Effective Date")
by and between Systems & Software, Inc., a Vermont corporation with its principal offices at 401 Water Tower Circle,
Colchester, Vermont 05446 ("S&S") and City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701
("Customer").
BACKGROUND
S&S has developed application software for use in the utilities industry; Customer desires to license from S&S certain
software as described in Exhibit 1 and to purchase from S&S the third-party hardware components as described in Exhibit 1.
In consideration of the mutual promises and covenants contained in this Agreement, the parties agree as follows:
AGREEEMENT
I. DEFINITIONS
"Application Software" means the commercial off the shelf ("COTS") version of enQuesta™ software licensed to
Customer pursuant to this Agreement.
"Confidential Information" means, with respect to a party hereto, all information or material which (a) gives that
party some competitive business advantage or the opportunity of obtaining such advantage, or (b) which is either (i) marked
or identified as "Confidential," "Restricted," or "Proprietary Information" or other similar marking or identification, (ii)
known by the parties to be considered confidential and proprietary, or (iii) from all the relevant circumstances should
reasonably be assumed to be confidential and proprietary. Confidential Information includes Customer's individually
identifiable customer information and also the Application Software and related Documentation all screen generator
programs, program codes, routines, methods, designs or objects, new product features and functions, the performance of the
Application Software, this Agreement, terms, conditions and information contained herein and the negotiations between the
parties prior to execution of this Agreement.
"Current Base System" means the version of the Application Software that has been commercially released by
S&S as of the Effective Date and the related Documentation.
"Customization" means the changing of any component of the S&S Current Base System during the original
delivery and implementation period of the Application Software installed prior to the System Acceptance Date.
"Delivery" means, delivery to Customer of the Information System (or components thereof)
"Documentation" means (i) with respect to the Application Software, the standard user-oriented instructions and
related materials for the operation of the Application Software in the form distributed by S&S generally to its customers,
together with updates, modifications and enhancements thereto; and (ii) with respect to the System Equipment, the standard
user-oriented instructions and related materials for the operation of the System Equipment in the form distributed by each
applicable third party vendor generally to its customers, together with updates, modifications and enhancements thereto.
"Hardware" means computer hardware.
"Information System" means the composite of Hardware, Operating System Software, Application Software and
Third Party Software provided by S&S.
"Major Release" means the commercial release of a new version of the Application Software that is identified by a
release number that is to the left of the first decimal point, such as 4.x, and that contains significant amounts of new or
significantly enhanced functionality and/or major changes to the product's architecture or file structure.
"Minor Release" means the commercial release of (i) a version of the Application Software that is identified by a
release number that is to the right of the first decimal point, such as x.I; and lor (ii) a set of software corrections and system
performance adjustments for the Application Software.
"Operating System Software" means the third party computer operating system software described in Exhibit I
that S&S delivers to Customer under this Agreement but which is subject to the license agreement provided by such third
party unless otherwise specified.
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"Peripherals" means all non-server related Hardware components including, without limitation, disk storage,
workstations, printers, tape drives, modems.
"Source Code" means computer code in high level, human readable language, including comments and
documentation reasonably necessary to build and/or modify such code.
"Support Services" means the software maintenance and support services to be provided by S&S as further
described in Section 4 and in the S&S Software Maintenance & Support Guidelines, as such guidelines may be amended by
S&S from time to time.
"System Acceptance" means the date on which a module or group of interrelated modules of the Application
Software is operating in a production environment processing actual Customer data with out a Level 1 defect as defined in
the Statement of Work signed between the Customer and Lawson Software, Inc. ("Lawson")., and shall occur thirty (30) days
after go-live unless a Levell defect extend the acceptance date.
"System Equipment" means the Hardware, Peripherals, Operating System Software and Third Party Software.
"Term" means perpetual unless the Agreement is terminated in accordance with Section 8(B).
"Third-Party Software" means the computer software that is described in Exhibit I that S&S delivers to Customer
under this Agreement but which is subject to the license agreement provided by such third party. For avoidance of doubt,
this term does not include the Application Software.
2. FEES AND PA YMENT SCHEDULE
A. Fees. S&S grants the licenses in this Agreement conditioned upon payment of the applicable license fee(s).
License fees related to the Application Software shall be due and payable within 30 days of the Effective Date of this
Agreement. Fees for Hardware and Third Party software shall be due and payable within 30 days of Delivery of said
Hardware or Third Party software. Customer shall ensure that all such amounts are directly remitted to S&S.
B. Invoices. All invoices submitted pursuant to this Agreement shall be due and payable within thirty days of
receipt of invoice. All amounts listed in this Agreement or otherwise quoted by S&S are (i) in U.S. Dollars and shall be paid
in U.S. Dollars; and (ii) do not include any applicable sales taxes, use taxes, duties or any similar assessments, and the
Customer shall furnish a tax exemption certificate to S & S. Any amount payable pursuant to this Agreement and not paid
within thirty (30) days after the relevant payment date for said amount shall be delinquent and shall bear interest at the rate of
one and one half percent (1 Y2%) (or, if less, the maximum legal rate) for each month or portion thereof it is delinquent.
Customer shall ensure payment of all such interest, as well as all costs and reasonable attorneys' fees incurred by S&S in the
collection of such delinquent sums.
C. Additional Items. In the event S&S provides Customer with additional hardware, software and/or related
services not specified in this Agreement, S&S shall be entitled to invoice Customer for such items pursuant to S&S' standard
fees for such items or other mutually agreed upon amounts, and such invoiced amounts shall be due and payable in
accordance with the terms set forth in this Section.
3. OWNERSHIP; LICENSE
A. Ownership. S&S and its licensors shall have and retain sole and exclusive ownership of all right, title and
interest in and to the Application Software, including ownership of all trade secrets and copyrights pertaining thereto, subject
only to the license rights and privileges expressly granted to the Customer herein. Customer agrees that S&S and its
licensors shall have sole ownership of all improvements and modifications made to the Application Software, including
without limitation those made in connection with the Customization, regardless of whether such improvements and
modifications are made by S&S alone or together with the Customer or third parties. Nothing in this Agreement shall be
construed as a commitment of S&S to create improvements, modifications or future enhancements to the Application
Software, other than those expressly specified in this Agreement. Upon request and without the necessity for further
consideration, Customer shall take all necessary actions to assign ownership of the Application Software and Customizations
to S&S.
B. Hardware. Subject to all the terms and conditions of this Agreement, S&S agrees to sell and Customer
agrees to purchase the Hardware specified in Exhibit I. S&S shall arrange for Delivery of each unit of Hardware by common
carrier at mutually agreeable time(s). Customer shall payor reimburse S&S for all costs of Hardware shipping and
transportation. At Customer's expense, S&S shall procure transit and casualty insurance for the replacement value of the
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Hardware, covering the transportation of the Hardware by the common carrier to Customer's loading dock. Good and
merchantable title and risk of loss in and to the Hardware shall pass to Customer upon Delivery. S&S reserves a security
interest in each item of Hardware, and shall have all of the rights of a secured creditor under the Uniform Commercial Code
with respect thereto. Such security interest shall be retained and may be enforced until Customer's payment obligations for
the applicable item of Hardware shall have been fully discharged. Customer shall execute all financing statements required to
perfect S&S' security interest, and if financing statements are filed, S&S shall execute a termination statement evidencing the
discharge of such obligations in the event a financing statement is filed.
C. License. In consideration of payment of the amounts set forth in Section 2, S&S grants to Customer a
nonexclusive and nontransferable right and license to use the Application Software solely for Customer's internal business
purposes in accordance with the provisions in this Agreement for the duration of the Term. Customer may use the
Application Software on Hardware upgrades, additions or replacements; provided, however, the Customer must give S&S
written notice in advance of any such change so as to permit S&S to provide support and to be aware from a licensing
perspective of the numbers and types of Hardware on which the Application Software resides or is intended to reside.
Customer agrees that it will not sell, assign, transfer, disclose, sublicense, or otherwise make the Application Software
available to others without the prior written consent of S&S. Customer shall not create derivative works of the Application
Software, meaning that the Customer shall not create any software or other works that are based upon the Application
Software or recast, transform or adapt the Application Software in any manner. Customer shall not disassemble, decompile
or "reverse engineer" the Application Software for any purpose.
D. Additional License Terms.
(i) Customer may prepare one copy of the Application Software for backup purposes only; provided
that the backup copy may be used only during the term of the license and the copy shall be destroyed or returned to S&S
upon termination of the license. Customer may prepare a reasonable number of copies of the Documentation for internal use
only; provided that the copies of Documentation may be used only during the term of the license and the copies shall be
destroyed or returned to S&S upon termination of the license. All copies of the Application Software and Documentation
must contain the proprietary notices appearing on the copies as initially furnished to Customer. Except as permitted in this
paragraph, Customer shall not copy or otherwise reproduce the Application Software or the Documentation, in whole or in
part, without the prior written consent of S&S. It should be further noted that the Customer shall be able to use this copy of
the Application Software to backup either the production or training environments that will be installed as part of a separate
arrangement with Lawson Software, Inc. ("Lawson")
(ii) The Application Software is licensed in object code only. The Customer shall have no rights to
the Source Code except as expressly specified in this Agreement.
(iii) The Application Software is for use by the Customer in the current utility entity at the projected
user level and the current Customer account volume (being the current number of metered or non-metered water, wastewater,
electric, gas, rental, refuse and other customers) specified in Exhibit I. The parties agree that, for purposes of this
Agreement, Customer's current account volume is considered to be 47,500 accounts (the "Current Account Volume").
(iv) Customer agrees that, if the Customer experiences increases in its metered or non-metered account
volumes over the Current Account Volume during the Term then additional Application Software license fees must be paid
by Customer. The additional Application Software license fees for the period of twenty-four (24) months following the
Effective Date of this Agreement shall be as specified in the Exhibit] and after such date the fees shall be subject to pricing
at S&S' then-current fees. Maintenance fees for these additional Application Software licenses shall be subject to pricing at
S&S' then-current rates.
(v) Customer shall provide S&S with an annual report specifying the then current number of metered
and non-metered customers. In addition, Customer shall promptly notify S&S of any increase in accounts due to growth
other than growth of existing services in the ordinary course of business. S&S shall have the right, upon fifteen (15) days
advance notice, to audit Customer's then current number of metered and non-metered customers once per calendar year.
Customer shall provide S&S or its third party designee with all business records, documentation and system access necessary
to conduct such an audit.
(vi) The Application Software is for use by Customer at the current number of users as of the Effective
Date and as specified in Exhibit 1. The parties agree that, for purposes of this Agreement, the Customer's current number of
concurrent users is 39 (the "Current Number of Concurrent Users"). Additionally, the parties agree that, for purposes of
this Agreement, the Customer's current number of licensed PC's is ] 29 (the "Current Number of Licensed PC's").
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Customer agrees that, if Customer expands the number of users beyond the Current Number of Concurrent Users or the
Current Number of Licensed PC's, Customer shall pay an additional per user fee. The additional per user fee for the period
of twelve (12) months following the Effective Date shall be as specified in Exhibit 1 and after such date the fee shall be
subject to pricing at S&S' then-current fees. Customer shall provide S&S with an annual report specifying the then current
number of users.
(vii) The Application Software shall be used solely on the server environment described in Exhibit I or
as otherwise agreed to in writing by S&S. Third Party Software use and limits, including with respect to the number of
named or concurrent users, will be subject to the terms of each third party vendor's own license which will be entered into
separately between Customer and each third party vendor.
(viii) Customer shall take all reasonable steps to preserve the confidential and proprietary nature of the
Application Software and Documentation.
(ix) Customer shall limit access to the Application Software to employees, auditors, consultants and
agents of Customer who need access to the Application Software in order for the Customer to use the Application Software
as permitted herein. Customer shall inform all persons with access to the Application Software of the confidential and
proprietary nature of the Application Software and of the restrictions set forth in Section 7 of this Agreement.
(x) All Third Party Software is licensed to Customer solely and directly by the third party supplier of
such software, not by S&S. Customer, therefore, acknowledges and agrees that, notwithstanding the Delivery to the
Customer and Customer's payment to S&S for such software, Customer's rights, obligations and remedies regarding such
software shall be determined solely and exclusively by the terms and conditions of Customer's agreements with the third
party supplier of such software.
(xi) The parties acknowledge and agree that (a) the Application Software may include embedded third
party software components licensed by S&S for use in the Application Software; (b) the terms and conditions of Sections
3(C), 3(F), 3(G), 3(1) and 5 of this Agreement shall inure for such third party's benefit and (c) subject to the license and
sublicense rights granted to S&S in connection with its use and distribution as part of the Application Software; the third
party software owner retains right, title and interest in such software, including statutory enforcement rights in the event of
infringement.
4. SUPPORT SERVICES
A. S&S Support Program. Beginning at Delivery, the Customer has the option to participate in the S&S
Software Maintenance and Support Program ("S&S Support Program"). Participation in this Program is required to
continue to receive support from S&S. The S&S Support Program is defined in Exhibit 2. S&S may modify the S&S
Support Program from time to time. The Application Software and systems support services described herein will be
invoiced on a prorated basis from Go-Live through the end of then-current calendar year and thereafter annually in-advance
on a January through December calendar year basis. Customer's participation in the S&S Support Program shall
automatically renew on an annual basis and shall be valid on a calendar year basis. In the event Customer wishes to cancel
participation in the S&S Support Program, Customer must notify S&S in writing on or before September 30th of the ycar
preceding the year in which the Customer wishes to cancel participation. If Customer elects to discontinue its participation in
the S&S Support Program, S&S shall be under no obligation to continue providing maintenance services past the period for
which Customer has paid for enrollment in the S&S Support Program.
B. Exclusions from Support Services. S&S shall not be required to perform corrective maintenance as part of
its Support Services with respect to Application Software malfunctions caused by:
(i) Customer's modifications to the Application Software unless performed at the direction of S&S;
(ii) Customer's failure to use updates, enhancements or program error corrections;
(iii) Failure to use the Application Software in accordance with this Agreement; or
(iv) Actions beyond S&S' reasonable span of control with respect to Customcr's actions which alter
the turnkey implementation environment, or cause Hardware or Third Party Software malfunctions.
C. Enrollment & Pricing. Customer agrees to begin participation in the S&S Support Program commencing at
Go-Live. Applicable pricing for the S&S Support Program are set forth in Exhibit I. For the year following the Effective
Date of this Agreement, these prices shall increase by no more than 4%. For years 2-10 following the Effective Date of this
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Agreement, these prices are subject to annual increase not to exceed CPI Index + 4% per annum. ("CPI Index" means the
most recently published "Consumer Price Index for All Urban Consumers" as published monthly by the U.S. Department of
Labor, Bureau of Labor Statistics. If the U.S. Department of Labor discontinues the publication of the CPI Index, or alters its
publication in some other material manner, then the parties shall adopt a substitute index or procedure that reasonably reflects
consumer price changes in the United States). The above cap on annual Maintenance Fee increases does not apply to any
Products or users licensed after the Effective Date of this Agreement.
D. Hardware Maintenance. Customer agrees that it will, following the applicable warranty period for the
Hardware, enter into a maintenance contract for the Hardware from the vendor (via S&S), unless the Customer is utilizing its
own Hardware. The Hardware warranty shall be effective upon the installation of the Hardware at Customer premises.
Customer acknowledges and agrees that maintenance and service of the System Equipment is a matter between the
manufacturer and Customer and that S&S its not obligated to service or maintain the System Equipment but will only act as a
liaison with the manufacturer to arrange for maintenance and service on and cannot be a party to or responsib'le for the
System Equipment's manufacturer's performance under the maintenance contract. Customer acknowledges and agrees that
S&S shall not be liable to the Customer for damages of any type resulting from the failure of the System Equipment
manufacturer to perform under the maintenance contract. S&S' limited Hardware maintenance support is described in
Exhibit 2.
E. Maior and Minor Releases. S&S shall provide Minor Releases to Customer as part of Support Services;
provided, that Customer is participating in the S&S Support Program. S&S reserves the right to provide Major Releases to
Customer pursuant to additional license terms, including the right to charge additional license fees.
F. Termination of Support Services; Transition to New Vendor; NDA Required from New Vendor
(i) In the event that Customer elects to replace the Information System with another vendor's product,
S&S will work with Customer to develop S&S' role in the transition. In order to protect the proprietary interests of S&S in
the Application Software, Customer agrees that any replacement vendor shall have only such access to the Application
Software as necessary to assist in the actual conversion. In the event a replacement vendor indicates that access to the
Application Software is necessary to implement the actual conversion, the Customer shall deliver a notice to S&S, containing
an explanation for the replacement vendor's need to access the Application Software, at least fifteen (] 5) days prior to
allowing the replacement vendor access to the Application Software. S&S shall have the right, in its discretion, to have a
representative of S&S present at the Customer's facility at all times when any replacement vendor has access to the
Application Software. Customer will cooperate by providing S&S with scheduling information necessary to facilitate such
presence. Any replacement vendor or other outside party required to assist in transition from the Application Software to
another vendor shall execute a confidentiality and non-disclosure agreement in a form reasonably satisfactory to S&S, prior
to the time said vendor or other third party has access to the Application Software.
(ii) Customer shall provide written notice to S&S at least sixty (60) days in advance of the conversion.
Customer and S&S shall develop a plan for services that the Customer desires in connection with a transition period to its
new system. In the event the transition plan requires S&S to provide services in addition to its standard support services
under this Agreement (and provided that S&S agrees to provide such services), Customer shall pay S&S for any such
services in accordance with S&S' then-current hourly or other applicable rates. Customer shall be responsible to pay S&S
under the then current Annual Maintenance and Support Contract through the end of the calendar year in which the
conversion is completed; provided that, if the conversion is completed prior to June 30 of that year, S&S will prorate the fees
for said final year in such manner to require the Customer's payment of six months rather than twelve months. S&S shall
continue to support the Customer as outlined in the S&S Support Program through the transition period so long as the
Customer continues to pay S&S the applicable fees and is not in material breach of this Agreement.
5. WARRANTIES; DISCLAIMERS; INDEMNIFICATION
A. S&S warrants that all Application Software products delivered under this Agreement will perform in
material compliance with the Documentation for the period ending ninety (90) days after System Acceptance (the
"Warranty Period"). S&S further agrees to furnish promptly and without additional charge, all labor and parts necessary to
remedy any such defect that occurs during the Warranty Period; provided that S&S must receive the notice of defect during
the Warranty Period. Thereafter support of the Application Software will be performed under the S&S Support Program,
provided that Customer is validly participating in the S&S Support Program and is current with all fees due to S&S in
connection therewith.
B. S&S agrees that, to the extent permitted, it will pass through to the Customer any and all warranties that
S&S receives from any manufacturer or supplier of any of the System Equipment. In the event that any component of the
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System Equipment has a defect in materials or workmanship or has an operating failure that occurs from normal use thereof,
S&S shall use commercially reasonable efforts to work with the third-party supplier to provide a timely solution for the
Customer.
C. Customer acknowledges that any warranty provided by S&S is limited to the Application Software and
used on the Customer's computer system listed in Exhibit 1. Customer further acknowledges that modifications made to the
Application Software by Customer, and not at the direction of S&S, wi]) void S&S' warranty of the Application Software,
unless specifically stated otherwise in writing by S&S. Customer also acknowledges that S&S cannot be responsible for the
Customer's use of third-party software or hardware products that are used or implemented in conjunction with S&S'
Information System, including Third Party Software and Hardware, and such other systems and modules where S&S did not
consult on, provide, or configure the systems.
D. S&S represents and warrants that all Third Party Software product manufacturers, listed in the Budget
Detail, have authorized S&S to grant licenses or sub-licenses to such software.
E. S&S' obligation for breach of warranty shall include timely correction or replacement of the module or
component of the Application Software that fails to conform to such warranty. In no event shall S&S be liable for any
breach of warranty unless notice thereof is given to S&S by the Customer during the Warranty Period.
F. UNDER NO CIRCUMSTANCES SHALL S&S BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF PROFITS, WORK STOPPAGE, SYSTEM FAILURE OR MALFUNCTION, LOSS OF DATA
OR ANY OTHER DAMAGES OR LOSSES IN CONNECTION WITH THE USE OF THE INFORMATION SYSTEM OR
OTHERWISE, EVEN IF S&S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING
LIMITATION SHALL NOT APPLY WITH RESPECT TO S&S' INDEMNIFICATION OBLIGATION SET FORTH IN
SECTION 5(1) BELOW.
G. To the extent permitted by applicable law, Customer's right to recover damages from S&S in conncction
with this Agreement, whether such damages are direct or indirect, in contract or in tort, for breach of warranties, failure to
perform, infringement of intellectual property rights, loss of profits, special, incidental or other consequential damages
arising from S&S' performance (or failure of performance) under this Agreement shall not exceed the total value of fees paid
by Customer to S&S for the item of software or services giving rise to such liability. Nothing in this paragraph shall be
construed as creating a right on the part of Customer to receive any indirect, special, incidental or consequential damages,
except to the extent such damages are expressly mandated by statute.
H. The warranties contained in this Section are in lieu of all other warranties, express or implied. S&S' express
warranties shall not be enlarged, diminished or affected by, and no obligations or liabilities shall arise out of, S&S' rendering
of technical or other advice or service in connection with the Third Party Software, Hardware and any other products.
EXCEPT FOR THE W ARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, S&S DISCLAIMS AND
EXPRESSLY WAIVES ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE WITH
RESPECT TO THE GOODS OR SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, AND THAT
CUSTOMER HAS NOT RELIED ON ANY REPRESENT A TION OR WARRANTY NOT EXPRESSLY SET OUT
HEREIN.
l. S&S Indemnity. In the event there is a third party claim alleging that Customer's use of the Application
Software in accordance with this Agreement constitutes an infringement of a United States patent, copyright, or trade secret,
S&S shall, at its expense, defend Customer and pay any final judgment against Customer or settlement agreed to by S&S on
Customer's behalf; provided that Customer promptly notifies S&S of any such claim or proceeding and shall give S&S full
and complete authority, information, and assistance to defend such claim or proceeding. S&S shall have sole control of the
defense of any claim or proceeding and all negotiations for its compromise or settlement, provided that S&S shall consult
with the Customer regarding any settlement of the claim.
In the event that the Application Software product is finally held to be infringing and its use by the
Customer is enjoined or S&S deems that it may be held to be infringing, S&S shall, at S&S' election: (I) procure for the
Customer the right to continue use of the Application Software; or (2) modify or replace the Application Software so that it
becomes non-infringing; or (3) in the event S&S determines that (I) or (2) is not commercially practicable, S&S may
terminate the license with respect to the infringing module and refund or credit to Customer the license fees paid by
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Customer under this Agreement in connection with such module, less a pro rata credit for each full or partial month during
which Customer used the module up to a ten (J 0) year period, and Customer shall return the original and all whole or partial
copies of the module and related Documentation.
S&S shall have no liability hereunder if the Customer has modified the Application Software in any
manner without the prior written consent of S&S.
The foregoing states S&S' entire liability, and the Customer's exclusive remedy, with respect to any claims
of infringement of any copyright, patent, trade secret, or other property interest rights relating to the Information System, or
any part thereof, or use thereof.
J. Customer Indemnity. Customer agrees to indemnify, defend and hold harmless S&S, its directors and
officers, and its employees and agents (collectively, the "S&S Indemnified Parties") from any and all claims, costs,
expenses (including reasonable attorneys' fees), damages, liabilities or judgments, relating to injuries to persons or damage to
property to the extent that the same arise out of the work or activities of Customer or its employees, subcontractors, or agents
in connection with the Project. Notwithstanding the foregoing, Customer shall have no obligation under the foregoing
sentence if the claim, cost or other item was due to the negligence ofS&S or any of the other S&S Indemnified Parties.
6. SOURCE CODE ESCROW
Upon Customer request throughout the Term, S&S shall supply a sealed Source Code tape for the Application Software
(including any Upgrades) licensed hereunder. In such event, the sealed Source Code tape shall be provided to an escrow
agent pursuant to an escrow agreement mutually agreeable to the parties. Customer shall be responsible for all fees payable
to the escrow agent or otherwise incurred as a result of the escrow agreement. The escrow agreement shall specifY that the
Source Code may be made accessible to the Customer only in the event that S&S (a) whether directly or through a successor
or affiliate, shall cease to be in the software business, (b) upon no less than sixty (60) days written notice (in addition to any
notice requirement set forth in Section 8(B) refuses to fulfill its support obligations under this Agreement, or (c) should be
declared bankrupt or insolvent by a court of competent jurisdiction. The Source Code supplied pursuant to this Section shall
be subject to each and every restriction on use and disclosure set forth in this Agreement, and the Customer acknowledges
that the Source Code and its associated documentation is the property of S&S and will use its best efforts to prevent
unauthorized use or disclosure of the Source Code.
7. CONFIDENTIALITY
A. S&S and Customer shall each hold the other's Confidential Information in confidence. Neither party shall
make the other's Confidential Information available in any form to any third party or use the other's Confidential Information
for any purpose other than as specified in this Agreement. Information shall not constitute Confidential Information if it is
publicly known or in the public domain through no breach of this Agreement by Customer or S&S. Neither party's
obligations of non-disclosure and non-use shall extend to information that is required to be disclosed or requested in
connection with any judicial or quasi-judicial proceeding, including, but not limited to, any administrative proceedings or
public records requests, provided the disclosing party shall give the other party reasonable notice of its intention to disclose
information.
B. This Agreement does not diminish, revoke or supersede any existing confidentiality, non-disclosure or
similar agreement between the parties. The obligations of the parties set forth in this Section are in addition to the obligations
of the parties set forth in any existing confidentiality, non-disclosure or similar agreement or otherwise arising under
applicable law. In the event that this Section is in conflict with any provision of an existing agreement covering
confidentiality or non-disclosure obligations, the provision that provides stronger protection to the disclosing party shall
govern.
S & S must identifY proprietary information and will agree to confidentiality to the extent it doesn't conflict with California
Public Records Law. To the extent that Customer receives a request for information related to S&S pursuant to California
Public Records Law, Customer must notifY S&S of said request immediately and S&S shall have the right to challenge said
request in accordance with applicable provisions of the California Public Records Law prior to Customer's response to said
request.
8. TERMINA TION, CANCELLATION OR MODlFICA TION
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A. This Agreement shall automatically terminate, and the license granted hereunder shall be automatically
revoked, at such time as (i) Customer ceases to use the Application Software; (ii) Customer breaches this Agreement in such
manner that adversely impacts S&S' proprietary rights in the Application Software and fails to cure such breach upon notice
pursuant to Section 8(B) below.
B. This Agreement may not be canceled or modified except by the written mutual consent of both parties or as
otherwise provided in this Agreement. If either party is in material breach of any of the terms and conditions of this
Agreement, the aggrieved party shall give written notice thereof, including a reasonably detailed statement of the nature of
such breach, to the breaching party. The breaching party will have thirty (30) days after notice is given to cure such breach
or, if the breach cannot reasonably be cured within thirty (30) days, the breaching party shall provide a written estimate of the
time needed to cure such breach, shall commence to cure such breach within ten (I 0) days of notice from the aggrieved party
and shall diligently continue to prosecute such cure to completion. If the breaching party fails to cure, commence to cure in a
timely manner, or diligently prosecute such cure to completion, the aggrieved party, at its option, shall be entitled to
terminate this Agreement or suspend its performance under the Agreement for as long as the breach remains uncorrected, and
avail itself of any and all remedies available under this Agreement.
C. Upon termination of this Agreement, Customer shall cease use of the Application Software and return to
S&S or destroy all copies of the Application Software and all Documentation in the Customer's possession or under its
control. Within ten (IO) days after termination of this Agreement, Customer shall send written confirmation to S&S, by first
class certified mail, return receipt requested, that Customer (i) has completed such destruction or return of the Application
Software and Documentation; (ii) has not permitted any improper disclosure, use of, or access to the Application Software or
Documentation; and (iii) acknowledges and agrees that Customer remains bound by the confidentiality provisions set forth in
Section 7 of this Agreement. Customer agrees that S&S shall have the right to disable the Application Software upon the
termination of this Agreement; provided that S&S shall not disable the Application Software if the Customer is contesting the
termination of this Agreement in good faith and Customer continues to pay all fees required by this Agreement and any
future agreements when due. In the event that the Customer contests the termination in good faith, the parties shall use their
best efforts to promptly resolve the dispute.
9. SEVERABILITY
In the event that a court of competent jurisdiction holds that a particular provision or requirement of this Agreement is in
violation of any applicable law, each such provision or requirement shall be enforced only to the extent it is not in violation
of such law or is not otherwise unenforceable and all other provisions and requirements of this Agreement shall remain in full
force and effect.
10. DISPUTE RESOLUTION
In the event of a dispute under this Agreement (except any dispute involving confidentiality or infringement, in which case
the non-breaching party is not barred from directly pursuing any legal remedy available to it, including litigation), S&S and
Customer agree that they will work together in good faith in the following manner: first, to resolve the matter internally by
discussions among the persons who are responsible for the particular issue; second, to resolve the matter internally by
discussions among the executives of the parties; and third, if the first two methods are not successful, to attempt to resolve
the dispute by means of mediation. Except as otherwise stated in this Section, any dispute, issue, conflict, or controversy
arising from, under or in relation to this Agreement which cannot otherwise be resolved by the parties shall be subject to
mediation. The mediation shall occur at a location in the State of California (or another mutually agreeable state) agreed to
by the parties. The mediation shall be conducted by an impartial mediator who has experience with computer software
contract disputes and who is acceptable to both parties. The parties shall engage in mediation in good faith and use
commercially reasonable efforts to resolve their dispute via mediation. If, after using such efforts, the parties have not
resolved their dispute, either party may, at its option, resort to litigation. The mediation will commence upon 90 days'
written notice of a demand for mediation or such other date agreed to by the parties. If one party unilaterally refuses to
commence mediation within said time frame, the other party shall no longer be bound to mediation and may, at its option,
initiate litigation. Each party shall be responsible for its own attorneys' fees and all costs of mediation shall be borne equally
by the parties.
II. FORCE MAJEURE
Systems & Software, Inc.
Confidential
8
Neither party shall be responsible for delays or failures in performance resulting from major substantive acts beyond the
control of such party. Such acts shall include, for example, but not be limited to, acts of God, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, earthquakes or other natural disasters.
12. NOTICES; PARTY REPRESENTATIVES
All notices required or permitted to be given hereunder shall be in writing and shall be delivered in hand or sent by first-class
mail, postage prepaid, or by a nationally recognized overnight courier, to the parties at the following addresses or other such
address or addresses as to which a party shall have notified the other party in accordance with this Section:
If to S&S:
Systems & Software, Inc.
40 I Water Tower Circle
Colchester, Vermont 05446
Attention: Executive Vice-President
If to Customer:
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 9270 I
Attention: Pamela Arends-King
Pamela Arends-King shall act as representatives of the Customer, and Executive Vice-President shall act as representative of
S&S with respect to this Agreement. These persons shall have the authority to transmit instructions, receive information,
interpret and define policies and make decisions with respect to this Agreement. Additional and substitute representatives of
S&S and the Customer may be added by written notice of one party to the other.
13. INDEPENDENT CONTRACTORS
The relationship of the parties is that of independent contractors, and nothing herein shall be construed to create a partnership,
joint venture, franchise, employment, or agency relationship between the parties. Neither party shall have any authority to
enter into agreements on behalf of the other or to bind or obligate the other in any manner.
14. NAMING THE CUSTOMER AS A REFERENCE; PRESS RELEASE
Customer agrees that S&S may, at its option, name Customer as a reference for prospective customers and identify Customer
as a customer for S&S' promotional purposes, including without limitation in press releases, on S&S' web site, and in
presentations to prospective customers. Customer agrees to permit S&S to conduct demonstrations of the Application
Software for prospective S&S customers at the Customer's offices; provided that S&S shall provide reasonable notice to
Customer in advance and shall coordinate with Customer to ensure that the demonstration does not disrupt Customer's
business.
15. GOVERING LAW; JURISDICTION; VENUE
This Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflicts of
laws.
16. ENTIRE AGREEMENT
This Agreement, including the Exhibits attached hereto, constitutes the entire agreement between the parties with respect to
the Information System. Accordingly, all prior agreements, representations, statements, negotiations and undertakings are
hereby superseded, except as otherwise specified in Section 7(B) above.
17. BINDING EFFECT; ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of S&S and the Customer and their permitted successors and
assigns. Neither party may assign this Agreement or any right or interest under this Agreement, nor delegate any work or
obligation to be performed hereunder, without the other party's prior written consent. Notwithstanding the foregoing, cither
party may assign this Agreement to its successor, without the other party's consent, in the event of a sale of substantially all
of its assets or in the event of a merger pursuant to which substantially all of its assets are transferred to the surviving cntity,
as long as said successor assumes all liabilities and obligations hereunder.
Systems & Software, Inc.
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) 8. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original document, but all of which counterparts shall together
constitute one and the same instrument.
19. EXHIBITS
The following Exhibits, attached hereto and incorporated herein by reference, form a part of this Agreement:
Exhibit I
Exhibit 2
- Budget Detail/Notes
- S&S Software Maintenance & Support Guidelines
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
Systems & Software, Inc.
~~
Title: V7 of D-r~,..)\-l'OA. r
..
---
CITY OF SANTA ANA
D^VIDa/l;fl~
City Manager
~/~4~
PATRICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By: , , J ,'1. Cr.1
Laura Sheedy /
Assistant City Atto~9/
Systems & Software, Inc.
Confidential
IO
Exhibit 1
Budget Detail & Additional Notes
1'1 lid III I Dl''lllplioll' 111111.11 I il'lll'l' Il'l" 101.11 \1I1111.d \J.lillll'Il.IIIl'l 1'.1\1IIl'1I1 Dill'
enQuesta™ Licenses
enQuesta™ Software & Interfaces
enQuesta™ Core Solution & Interfaces
enQuesta™ Donations & Refuse
enQuesta ™ W ebconnect
enQuesta™ Middleware
Oracle 109 Enterprise Edition
Annual Maintenance
Contract Signing
Total ..,nx.SS9.., 120,0 16
$120016
Contract Signing
Contract Signing
Contract Signing
S stems Acce tance
Note 1 >
As stated in paragraph 3(D)(iv) of the End User License Agreement, additional accounts above and beyond
the Current Account Volume are chargeable as follows:
Maximum Account Volume:
Type of Account
Water
# of Accounts
47,500
Additional Metered Accounts Additional Charge*
- 2,500 $0.00 per account
2,501 10,000 $3.00 per account
10,001 15,000 $2.85 per account
15,001 25,000 $2.70 per account
25,001 + $2.55 oer account
* Charge is a one-time per account charge for all accounts greater than the
Maximum Account Volume listed above. Maintenance fees will be charged for
incremental accounts at then-current rates.
Note 2>
As stated in paragraph 3(D)(vi) of the ISA, additional users above and beyond
the Current Number of Concurrent Users can be purchased in packs of 10 for $3,000 and
additional users above and beyond the Current Number of Licensed PC's can be purchased
in packs of 10 for $2,325,
Additional maintenance fees will be charged for for these additional users
at then-current rates.
Proprietary & Contidential
Page 1
":,,'
Sys1;ems
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Systems & Software Support Program
General Guidelines
Effective January 1, 2008
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Executive Summary of Services Provided
Beginning on January 1, 2008, the following services and guidelines apply to the Systems & Software Support
Program. If you have any questions related to the following information, please call the dedicated Help line at 1-800-
655-881 O.
Application Support
Help Desk support for general application inquiries and issues
Representatives in S&S office from 8:00am EST through 5:00pm (customer local time) Monday through Friday
24x7 critical issue coverage available off hours (available option)
Time and priority commitments for response to operational critical issues
Commitment to quality and timely issue resolution
Automated case management via TIP (TestTrack Pro issue resolution software)
Escalation path for issue resolution
Technical Support
Telephone advisory assistance with routine system management functions
Remote log-in support for troubleshooting issues with layered products and operating system software that are
related to the documented capability of S&S applications
System analysis, performance analysis, and capacity planning analysis to monitor the customer system
(additional charges may apply for certain of these services)*
Technical configuration & performance assistance including hardware details such as processors, memory, disk
and tape drives provided as requested (additional charges may apply for certain of these services)*
* Services that may require additional charges are those that are not generally applicable to the core operations
of enQuesta TM. These may include, but are not limited to, such services as City-wide capacity planning services
and configuration of non-enQuesta TM services.
Third-Party Software
First-line diagnostic support for third-party vendors with whom S&S is associated or whose products are
integrated within enQuesta ™
Update Support
Fixes, error corrections, patches or corrected procedures for the supported versions of enQuesta TM and its
component level software
Periodic product version releases or upgrades (including base enhancements).
Education
Periodic educational seminars (Webcasts) including regulatory updates
Online documentation available through the customer portal
Access to product documentation, training course catalogs and schedules, and User Forum information
Attendance, training and hospitality events at no cost (no registration fee) for customer employees at customer
user conferences, when held
Utilization
Ability to utilize the enQuesta™ business application, based on:
Number of metered, non-metered and monthly billed transactions
Number of services provided by your utility
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Volume and complexity of implemented business concepts
Number of users and operators (including ad-hoc query, IVR & IWR)
Number of total access points
Number and complexity of interfaces
Further Detail of Services Provided
The Systems & Software Support Program provides coverage for and is inclusive of the items listed below:
1. Authorization to receive support services for licensed products from Systems & Software for the calendar year,
January through December 2008.
2. Access to new releases of the licensed enQuesta™ business application, when such application software
becomes generally available and a separate upgrade engagement has been established between S&S and the
customer. This support criteria applies to the originally licensed application software itself; newly developed
modules or applications, and the range of systems support services associated with deploying production
en Questa ™ software, are handled under a separate contract or amendment. Additional services may include
migrating from one version of enQuesta™ to another, performing assurance testing, performing interface
testing, training customers on new versions of the application software, or purchasing additional hardware or
third-party software products.
3, Fixes, error corrections, or corrective procedures for the supported versions of enQuesta ™ (the current version
and the most recent release just prior to the current version of the application). Depending on the nature and
cause of these errors, certain additional charges may apply for these services.
4. The cost of media, postage, mailing, telephone, modem, and Internet support to distribute or support existing or
new releases. S&S asks that media used to distribute updates, corrections, or new releases are returned to
S&S upon loading said object code.
5. New documentation or Meta data (KnowledgeBase/ Catalog/ enQuesta Query Layer (eQL)/ data dictionary
detail), as made available by module. S&S understands that due to the customized nature of the various
applications for customers and the speed with which refresh updates or new releases are developed and/ or
deployed, customers may not always have documentation that exactly applies to the version they are running.
Customer practices show, and S&S's expectation is, that customers rely on the on-line help text and guidelines,
and/ or call the Customer Support Desk for clarification and verification. Module documentation and Meta data
information is now deployed only via S&S's customer website, at www.systemsandsoftware.net/customer.
6. CIS-based customer letter generation reflects the need to support the integration of enQuesta ™ applications,
such as Work Orders, Customer Service Orders, Customer Letter Correspondence, or Cross Connections, to
an associated tool. S&S will assist customers with selected letter or Work Order/ Customer Service Order
document maintenance. Creation and maintenance of these documents is the responsibility of the customer.
7. Support related to items that are normally charged but are minor in nature may be waived solely at the
discretion of S&S. These might include restoring processes and/ or data that were corrupted due to operator
error, minor changes to a bill print format, etc. These will be judged based upon the magnitude of the work to
be performed and the frequency of occurrence.
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8. Attendance, training and hospitality events at no cost (no registration fee) for Customer Users at Customer User
Conferences, when held. Travel, lodging, meals, and other associated fees would be at the customer's
expense. Due to the market and competitive nature of the S&S enQuesta ™ products, non-customer personnel
may attend only upon written request, and S&S reserves the right to refuse attendance at customer conferences
to non-customer attendees. A fee of $2,500 per day per non-customer attendee will apply, if such non-
customers are authorized to attend. In some cases, customers may be required to sign non-disclosure
statements at such events.
9. Periodic Training Classes are scheduled to be conducted online via WebEx. These educational offerings can
be used to update and refresh user personnel from your organization in the use of popular modules and
processes that have an appeal to the largest number of customers such as Navigation, Billing, Credit &
Collections, Work Orders, etc. S&S will take input from Executive! User Forums, Customer Listening visits,
surveys, and requests made through our Customer Service Department, website, and account representatives.
10. Periodic informational announcements or newsletters covering new announcements, enQuestaTM
enhancements, hardware and third-party software issues, vendor relationships, new technologies or technical
considerations, new product announcements, and other related topics.
11. Access to the latest levels certain third-party products including of Cognos' Impromptu and!or PowerPlay (both
for database customers), Cognos' ReportNet solution, Micro Focus' Server Express Runtime Licenses
(assuming the initial upgrade to Server Express was paid under separate contract), enQuesta™ client or
middleware components,lQ character for AIX (non-database customers), or IBM's UniData database products,
or other third-party software products or vendor products which are invoiced as part of the S&S Support
Program, or as these products become available from the respective vendors. Deployment or training services
for such are handled separately under a time and materials basis.
12. Technical Assistance is available by request. These services include but are not limited to system and
application configuration, performance analysis, and certain other hardware, operating system and database
related services. These services are subject to additional charges on a time and material basis at the
discretion of your Account Manager, if applicable.
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Certain Systems & Software Support Program Guidelines
1. Under the Systems & Software Support Program, customers will receive unlimited daytime phone, modem,
internet, email and fax support for areas related to the operation of all licensed enQuesta ™ modules under the
supported version (i.e., the current version and the most recent release just prior to the current version of the
application) and, more specifically, for the business processes! features which are accommodated by
enQuesta ™ applications that are already in production use as enabled through working with S&S, during an
initial or subsequent engagement. enQuesta ™ applications may have the capacity or inherent functionality to
serve many business or customer-specific functions that may not be in production use within your organization.
If an organization decides at a later date to make use of a new feature or business process, this would be
clearly defined as "new" work which would be supported under a separate time and materials based contract,
not "how-to" support for an existing business process.
This support is limited to operators who have been trained by S&S personnel or other certified trainers under
"Train the Trainer', "Train the Key Personnel', or "Train the Super Users" concepts, and who have ownership
for and a clear understanding of the applications and issues for which they are requesting support on the
current enQuesta ™ release. Support activity via the Customer Support Desk from new personnel will indicate
the actual capabilities or level of training new personnel have received. This information will be shared with
customers and, if necessary, related services will be contracted for separately at rates indicated in this
agreement.
Inbound phone support initiated from our dedicated support line, 1-800-655-8810 would generally entail a Y:z
hour call or less (this duration certainly may vary). Faxes, phone calls or e-mails which result in extended, or
even multi-hour, phone conversations or work effort would be handled separately on a time and material
contract basis. Possible examples would be: several analysts' subsequently providing "Y!' number of hours
assisting with implementation of "new" work (such as discussion! implementation of new Work Order types, a
modified General Ledger Chart of Accounts, or implementation of a new business process that the application
supports (but which is not in production mode), such as ACH, an AMR solution, or a new interface). Other
examples may include but are not limited to: fixing incorrect operator procedures, training new or existing staff
over the phone, assistance with balancing or bookkeeping, setting up training databases and training operators,
performing work or services for organizations whose key individuals are out of the office, writing custom scripts
or programs to resolve customer issues not caused by enQuesta TM, and other support items of this nature.
This scope of work would clearly be defined as "implementation of new business processes" or "consulting
outside of 'how-to' telephone support".
2. Ad-hoc report writing with third-party tools such as Cog nos ReportNet or Cognos Impromptu is the responsibility
of the customer. This includes creation of reports and all subsequent modifications including those resulting
from changes in versions of enQuesta TM or the third-party reporting tool. To facilitate this process, S&S will
maintain the KnowledgeBase! Catalog! Meta data! eQU data dictionaries and provide support for general
questions.
It is highly recommended that organizations appoint a core group of persons to become entirely familiar with all
aspects of the en Questa ™ applications and the KnowledgeBase! Catalog! Meta data! eQU data dictionaries,
such that these individuals become subject-matter experts within the organization.
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3. CIS-based customer letter generation and Work Order! Customer Service order printing reflects the need to
support the integration of enQuesta ™ applications, such as Work Orders, Customer Service Orders, Customer
Letter Correspondence, or Cross Connections, to an associated tool. S&S will under this support contract assist
customers with routine letter or document maintenance. Work on a magnitude of documents or wholesale
change out of business logic or text with regard to Work Order design! templates would be handled under
separate engagement. Customers are encouraged to use S&S services under this contract to keep customer
letters up to date, unless customers have chosen to "certify" a member of their organization to modify! update
customer-related correspondence functions.
4. Telephone Customer Support Desk support services and hours of availability are weekdays from 8:00am to
5:00pm, customer local time, excluding Holidays and other posted exceptions, unless other specific contractual
arrangements have been made with your organization. 24x7 pager support is offered for selected contractual
situations; pager support reflects coverage for enQuesta ™ related emergency situations only. Unless covered
under a separate arrangement, support provided outside these hours will be invoiced at the off-hours support
service rate as referenced in item 6 under this heading.
5. Items excluded from this plan include: training of new operators; consulting, hardware or site planning and
infrastructure support; Value Added software support (for applications other than those referenced in paragraph
9 of this section.); Hardware Maintenance; or any topics generally considered "new business". These
professional services would be billed separately under a separate time and materials based agreement.
Also excluded from this plan are Windows and other PC desktop systems support; communications or
infrastructure support; support of situations which reflect your use of third-party vendors over which S&S has no
direct responsibility, such as bill-print houses, banks, AMR vendors, or other such third-parties. S&S supports
these other types of situations on a time and material fee basis at the discretion of the Account Manager, if
applicable. For the vast majority of technical or third-party situations which arise, S&S believes this method to
be the fairest way to support customers in areas over which S&S has little, if any, responsibility or systematic
controls.
6. Outside of Systems Support Services covered under the S&S Support Program as reflected herein, all other
Systems Support Services in 2008 will be invoiced at the following rates:
Service Tvoe
Custom Programming &
Business Process Consulting
On-Call Pager Support
Other Services
Rate oer Hour
$213
$135
$135
These services are provided subject to a minimum % -hour charge. Off-hours (5pm-8am, or holiday! weekend)
support will be invoiced at $240 per hour, minimum 1-hour charge. Involvement of other vendors, whose
services may be required, in concert with or outside of work with S&S, shall invoice directly or through S&S at
their own rates. An example would be billable services through IBM Corporation, for AIX SupportLine or
ConsultLine charges.
Given that the range of systems support services generally reflects multiple S&S parties performing work prior
to, during, and after the "face to face" customer engagement, daily rates or per-student charges may apply for
some ranges of support services, including training classes. These shall be determined at the time of
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contracting and are subject to change at any time, depending on the scenario or the value-ad proposition to the
customer.
7. All other enQuesta™ or non-enQuesta™-related support services, preparation time, consulting, analysis,
travel, or telephone and modem support issues will be invoiced on a time and material basis as incurred. Every
attempt shall be made by the Customer and S&S to understand, scope, define and have customer acceptance
for work scope under an estimated time and materials engagement prior to work commencing. Issues that S&S
determines require extended support or support of third-parties for resolutions to customer issues will in some
cases be turned over to the appropriate third-party. (IBM AIX Support, for example, may be contracted on
behalf of customers to conduct performance-tuning testing on their pSeries servers). Areas identified as those
which would best be handled by third-parties will, time permitting and assuming a customer representative is
available who has ownership for the issue, be discussed with customers prior to arranging the service.
8. Administration:
a. Customers are responsible for ensuring supported staff members are aware of these policies and
procedures. A request for support from a customer assumes an understanding on the part of the customer
of said policies and procedures.
b. S&S asks that customers appoint a key individual (or select, core group of key individuals) to receive all
support calls/ requests from S&S in order to eliminate duplicate calls and/ or faxes or e-mails. The
Customer Support Desk format relies upon an initial contact being made with a detailed description of the
issue being submitted, with specific backup material being faxed or e-mailed (using the attached Customer
Support Reauest Form). All customers have been sent soft copies of the attached form, which is the
preferred method of issue submission to S&S. Calls into S&S are not necessary if the Customer Support
Request Form has been filled out thoroughly, This form may be filled out soft copy and emailed, or may be
faxed. The preferred method of submission to S&S is bye-mailing your request to our dedicated inbox:
SUDDort@svstemsandsoftware.net with any appropriate attachments to help us triage the issue.
S&S' objective is to ensure that customers be fully satisfied at all levels of the interaction, each and every
time customers engage S&S. Unless there is already an open work order which was correctly initiated via
the Customer Support Desk, correspondence sent to specific support individuals will NOT be forwarded to
the Customer Support Desk for logging. With the objective being quick, correct and efficient resolution to
customer issues, resulting in high levels of customer satisfaction, customers must submit all
correspondence to the Customer Support Desk, not specific staff. Send your support issues to fax: 802-
655-6570 or e-mail: SUDDort@svstemsandsoftware.net which is the only authorized "support" email
address; please do not forward correspondence to individual email addresses, even if those personnel may
be part of the Customer Support Desk staff group.
We ask for your assistance in not circumventing the routing and support system; this is in place to ensure
that all customer issues are logged and tracked centrally, and is essential in ensuring a high level of
customer satisfaction. We thank you in advance for your cooperation so that we may efficiently serve your
organization.
c. Questions related to invoices outside of the S&S Support Program should be addressed in writing to the
S&S Finance & Accounting Department within 10 business days of receipt of invoice in order that 30-day
accounting cycles may be accommodated. Invoices are payable upon receipt.
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d. Verbal or written requests for changes or enhancements to application software which is in production use
by your organization are not considered "support" items and therefore should not be requested via
telephone from support personnel via the Customer Support Desk. Such "new" enhancements or custom
requests must be in writing using the Software Request Form, which can be downloaded from our customer
web site, at www.svstemsandsoftware.net/ customer. Please mail orfax all hand-written Software Request
Forms to the Customer Support Desk, or submit the request form electronically via our website. Once
received, they will be routed to the appropriate parties. If your organization is more than one release level
behind the most recent enQuesta ™ version, again note that only in the most critical of situations is S&S
likely to accept the custom request. Having migrated to the most recent level of the enQuesta ™ application
assures customers that S&S is likely to accommodate business change requests.
This process should be used judiciously to the extent that incoming requests should be "signed off' by the
appropriate parties at the customer location in order to maintain control and understanding of the
enhancements or custom modifications that have been requested.
e. S&S requests that in cases of specific custom requests (modification; customization; new features; new
interfaces; and enhancements to subcontracted solutions) from a customer, the entire written scope of
such request accompany the inquiry. A work order will be created such that S&S can log the request and
pursue the engagement on behalf of the customer. S&S shall then validate the written scope document.
Ascertaining and validating work scope can consume a significant percentage of the overall engagement
and is a critical factor in ensuring overall customer satisfaction with any such custom engagement.
Engagements shall in some cases be forwarded just to scope work; the actual work, if accepted, would be
handled under separate engagement.
If new functionality has been developed due to an approved contract from the customer, the customer will
be notified when the enhancement(s) are ready to be viewed in their Train environment. From notification,
customers will have 10 working days to test and approve the new functionality and respond back to S&S
via the Account Manager, if applicable. If S&S does not receive a response back from the customer within
the 10 day timeframe, additional testing and setup fees may apply to requested changes. New functionality
will not be deployed to the Production environment until changes are formally approved in writing by the
customer.
f, Support plans shall continue to be modified in order to support customer requests and feedback.
g. Customers are required to have a broadband internet connection (cable, T1 or higher) and that S&S be
given inbound internet access (from S&S to customer) via a Cisco 3002 IPSEC VPN or similar device that
S&S will configure, in order to access servers on the customer premises that relate to access to or support
of en Questa TM. Minimal firewall entries will be needed to allow a connection to S&S's Cisco router. S&S
can also connect to a qualified Cisco device that is on the customer's existing LAN. Currently S&S uses and
supports IPSEC 3DES with 168-bit encryption with NAT supported. The ability for S&S to use this
technology in support of customer installations will alleviate risk associated with slow, asynchronous
modem access to customer's IBM pSeries or Dell PowerEdge servers. In summary, broadband access is
required for enQuesta ™ customers and is requested for all other customers. NOTE: Given the number and
diversity of customers requiring support from S&S, each with varying networking infrastructure, support of
software-based VPN clients is not a viable replacement for these suggested access methodologies.
CONFIDENTIAL
Page 8
401 Water Tower Circle
Co1chester, VT 05446
.www.svstemsandsoftware.net
p: 802-655-4400
f: 802-655-440 I
2/28/2008
Systems
& Software
~~
2008 Systems & Software Support Program Guidelines
h. If Customer is on the supported version (the current version and the most recent release just prior to the
current version of the application), corrective fixes will be delivered to the Customer via a scheduled
Maintenance Release. Customers will receive Release Notes and Customers are responsible for testing
corrective fixes within a scheduled window before S&S will move the Maintenance Release into Production.
i. In order to ensure that the enQuesta TM system is kept up-to-date with enhancements and bug fixes,
Customers are strongly encouraged to install the then-current Maintenance Release* made available by
S&S at least once per quarter. If a Maintenance Release has been made available generally by S&S that
addresses a particular issue and a Customer subsequently contacts the S&S Help Desk regarding this
issue but has not installed the applicable Maintenance Release, Customer will be required to install the
Maintenance Release prior to assistance by S&S. If a Customer declines to install said Maintenance
Release to remedy the issue, S&S reserves the right to charge the Customer on a time and material basis
at then-current rates for effort incurred to resolve the issue.
* Customer may need to install previously released Maintenance Releases prior to installing the then-
current Maintenance Release in order to bring the Customer's environment to the most current level.
CONFIDENTIAL
Page 9
401 W ater Tower Circle
Colchester, VT 05446
www.svstemsandsoftware.net
p: 802-655-4400
f: 802-655-4401
2/28/2008
Systems
& Software